Anthony Lagoon Station Pty Ltd v. The Honourable Justice Maurice & Ors [1987] FCA 389

Federal Court of Australia|1987-07-01|Before: Maurice J

Administrative Law - Powers of Aboriginal Lands Commissioner when

performing his functions under the Aboriginal Land Rights

(Northern Territory) Act 1976 - whether Commissioner has power of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behaif of, Aboriginals -

fa ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and

(11) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where

he finds that there are Aboriginals who are the traditional Aboriginal

owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12; ."

Reference is made later in these reasons to sections 54, S4A

The Act makes provision for the establishment of Aboriginal Land Councils; s.cl. The respondent, Northern Land Council, 15 established under that section. Under 3.22, it 15 a body corporate. The functions of a Land Council are contained in 5.23. For present purposes, the relevant

function of the Northern Land Council 158 contained in

ff} bo assist Aboriginals claiming to have a traditional land claim to an area of land within the area of the hand Touncil in pursuinys the claim, in particular, by aeranging for legal assistance for them at the expense of the Land Council; "

The respondent, the Honourable Mr. Justice Maurice is the Commissioner. He is hearing an application brought by the Northern Land Council on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalirenated Crown land, to ascertain whether those Aboriginals or any other Aboriginals are the traditional owners of the land. The land 15 known as Wombaya. It 15 Situated north of Tennant Creek and east of Newcastle Waters. There 15 no practical means of access to Wombaya except through land held by the appellants, Anthony Lagoon Station Pty. Ltd. and Eva Downs Pastoral Company Pty. Ltd. respectively. These lands are alienated Crown lands under the Act in which the appellants are the leaseholders for pastoral purposes. In order to be able to present its application properly to the Commissioner, the Northern Land Council requires access to Wombaya and for that purpose requires access over the appellants' land for "its staff and consultants, together with such Aboriginal informants as they require." The appellants refused to give the Northern Land Council permission to enter and remain upon their land for

Pursuant ts the Powers conferred upon the Commissioner by 5.81 of the Act, the Commissioner has given Practice Directions dated ol May 1985 The Practice Directions contain procedures to be followed where a request Or application 15 made under sub-sectisn 50(1) of the Act. Under the Practice Directions, material must be provided with respect to the land the subject of the claim. The Northern Land Council cannot provide that material with respect to Wombaya unless it has access to the land itself. It cannot

have access, for practical purposes, unless it is permitted

to enter and remain upon the land leased to the appellants.

On notice to the appellants, the Northern Land Council made application to the Commissioner for orders enabling 1t by its staff and consultants together with such Aboriginal informants and claimants as required to enter the appellants' land. The appellants opposed the making of the orders. After hearing the parties to the application for the

orders, the Commissioner announced he would grant the order

sought. His reasons for decision included the following

"IT am of the view that I ought to grant you the authority which you seek; that 15, to enable the Northern Land Council, in particular Mr Avery and the other persons engaged by the council for the purpose of preparing this claim, to enter and remain upon Eva Downs station and Anthony Lagoon station for the purpose of gathering and recording the material necessary to comply with my practice directions published in May of last year and that they ought to be able to take with them such Aboriginal informants and other assistants as they

Team satisfied that TI have the power under section 51 ts grant that authority, because I consider it to be necessary for the proper

di scharge by me of my function under section 50 of conducting the inquiry in relation to these two land claim applications; and even if 1t¢ were not strictiy necessary on the basis of the materials I have had put before me, having listened to the submissions which have been made I would consider

1t to be most expedient and desirable that I make such an order. ae

Here what is proposed 15 not to do anything that would cause permanent or enduring harm to the leaseholders concerned or indeed to the Crown in right of the Northern Territory, but merely makes lawful an entry upon land which might otherw is be unlawful.

As I have said already, the Aboriginal Land Rights Act does not lay down the procedures which I must follow in conducting my investigation. It leaves m2 to devise procedures which I consider appropriate for that purpose. On 22 May last year I published general practice directions which required in effect land councils sponsoring particular land claims to perform a great deal of preparatory work before I would undertake to commence an oral hearing or visit a claim area, including the gathering of the sort of ethnographic data and site information that 1s necessarily a part of the proper presentation of any land claim. I have no doubt, based upon my experience in land claims, that it 15 mecessary for those doing this preparatory work to visit and inspect the sites which are relevant to claim claims in order for them to do so, just as indeed I have said that i1t is usually desirable, 1f not essential, for me at some stage to visit some of those sites in company with the claimants for the purpose of taking part

of their evidence. I need not elaborate here upon why it 15 so.

The present case largely arises out of the most unusual circumstance - that the Wombaya claim area, that is the present application, is totally encircled by alienated Crown land; that is, land held under pastoral lease. So far as the researches of averybody concerned have revealed, there are no public roads leading to that area.

Commissioner, then issued an order. The relevant parts

Perhaps it was mot a situation anvisaged by those who were responsibie for drafting the Land Rights ack when considering what powers they should give to the commissioner bo anable him to carry out 13S functions, or 21 might Ee argued that 1t was precisely for the reason that the sorts of powers h2 may require could not be foreseen and therefore it was decided to give him the general power contained in section 51 to cover all possible contingencies."

"ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976

IN THE MATTER of the Wombaya/Anthony Lagoon Land Claim

BEFORE THE HONOURABLE MR JUSTICE MAURICE ABORIGINAL LAND COMMISSTONER THE 25TH DAY OF AUGUST 1986

UFON THE APPLICATION of the Northern Land Council Made the 24th day of July 1386 and

UPON HEARING Mr Fitzgerald for the Applicant, Mr Henwood for the Respondents and Mr Gillespie for

the Attorney-General for the Northern Territory of Australia

IT [IS HEFEBY CPDERED that the Applicant by its staff and consultants, together with such Aboriginal informants and claimants as required, 13 AUTHORISED TO ENTER AND REMAIN UPON the following land areas: .. ./

There are then set out the details of the land to be entered. a

"FOR THE PURPOSE OF gathering and recording information necessary to anablie the Applicant to comply with certain practice directions published by the Aboriginal Land Commission on 22/5/85 in so far as those directions apply to the traditional land claims known as the Wombaya and Anthony Lagcon Area land claims.

AND THE APPLICANT IS FURTHER AUTHORISED where strictly necessary for the said purpose hereof toa cut fences, install gates, and draw water from bores and/or waterholes.

Restrictions are then set cut including the giving of notice before entry and the requirement to rectify damage

"AND pursuant to powers vested in me under Section 51 of the Aboriginal Land Rights (Northern Territory) Act 1976 JI DIRECT ALL PERSONS to whom this Authority 15 produced to grant the Applicant by its staff and consultants, together with such Aboriginal claimants and informants as required, FREE AND UNRESTRICTED ACCESS to the Respondents' said properties for the purposes specified during the period of this Authority SUBJECT TO the terms and restrictions hereof.

This decisicn is hereinafter called "the order and authority." First, 1t srders that specified persons be "authorised to enter and remain upon" defined lands for specified purposes and in s0 doing to do certain things, subject to conditions and restrictions. Second, 1t directs "all persons to whom" the authority is produced "to grant" specified persons "free and unrestricted access" to the defined lands for the purposes specified "during the perisd

of" the authority. No period 15 expressed in the order and

The question immediately arises, what happens if persons to whom the order and authority is produced refuse to obey the direction? A breach of the peace may occur. The Act imposes no penalty on persons who refuse to comply with the order and direction. If the persons who are authorised to enter and remain upon the land s0 enter without the consent of the appellants, have they committed a trespass and

The order and authority has all the appearances of an order of a court. It is expressed to be between parties. It was made following a hearing before the Commissioner at which those parties were represented by lawyers. It purports expressly to affect the legal rights of those parties. But the Commissioner was not exercising judicial powers. In

reality, 1m many respects, the order and authority is similar

to a "search" warrant issued under 3.10 of the Crimes Act 1314 (Cth). Ib purports to make lawful what stherwise would

Decisions (Judicial Review) Act 1977, the appellants sought

an order of review of the order and authority. The substantial ground of the application was that the order and authority was not authorised by the Act; paragraph 5(1}(d) of

appellants relied upon the further ground that the order and authority was an improper exercise of the power; paragraph S5(1)(e) of the Judicial Review Act. The Court dismissed that

application and the appellants have appealed from that order.

consideration was given to warrants issued under the Service

and Execution of Frocess Act 1901 (Cth). At pp.326-7, I

"In general, a Warrant, essentially, is an authority or order directed to a person to do some act. In many cases, the doing of that act in the absence of the warrant, would be unlawful. A clear statement of the nature of a warrant is given in Corbett v R (1932) 47 CLR 317 by Gavan Duffy CJ, Rich and Dixon JJ at p333: 'A warrant is a precept under the hand and seal or hand of a person vested with authority empowering another or others to do an act or perform a function.'

The authority to issue a warrant 1s often contained in legislation, see for example, 5s 10 of

the Crimes Act 1914 (Cth). A warrant issued under that section 153 commonly called a search warrant.

Legal questisns relating ts the execution warrants may arise ain many different ways.

question may arise as £3 whether the warrant relied upon was in fact authorised by the legislation. A

1ssued validly. A question may arise as ta the proper construction of the terms of the warrant. A question may arise as to whether the person

executing the warrant was acting outside the powers .

conferred by the warrant. Many other questions may arise. A reference to just a few of the many cases dealing with warrants illustrates the wide range of questions that do arise: see for example Corbett v R, Supra; R v Tillett; Ex parte Newton (1969) 14 FLR 101; Crowley v Murphy (1381) 34 ALR 436; 52 FLR

23; Baker v Campbell (1983) 153 CLR 52; 493 ALR 385; Arno v Forsyth (1986) 65 ALR 125 and Parker v Churchill (1986) 65 ALR 107. All these cases indicate that whenever a court 15 hearing a matter involving a warrant, it 15 imperative that careful consideration be given to the provisions, statutory or otherwise, which authorise the issuing of the warrant, the terms of the warrant and the facts surrounding the execution of the warrant. It is equally imperative that counsel appearing in cases of this kind give careful consideration to these

matters. From their very mature, warrants authorise acts to be done which otherwise are not authorised. Warrants must be scrutinised very

Those principles should be applied in the present case. In particular, the question is raised as to whether the order

It i3 realised that the Commissioner, in performing the functions conferred on him by the Act, has to deal with and overcome many difficult problems, many of an unusual nature not present in the course of administering executive functions under normal circumstances. A reference to some of the many cases dealing with the nature of the functions and

powers of the Commissioner illustrate these difficult

Attorney-General For the Northern Territcey of Australi

Crimes Act 1314(Cth)

Service and Execution of Frocess Act 1901(Cth)

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